Major Win In Hawaii Strikes Unconstitutional Permitting Law

(AP Photo/Mohammad Sajjad)

Plaintiffs in a case out of Hawaii have scored a major win against the draconian laws that regulate pistol permits and registration. Yukutake v. Connors involves two individuals challenging both the 10 day permit validation timeframe and requirement for in person inspection of arms by the police. All-star lawyers, Alan Beck and Stephen Stamboulieh challenged the Hawaii statutes which read in part:

134-2(e)

Permits issued to acquire any pistol or revolver shall be void unless used within ten days after the date of issue.

,,,

134-3(c)

Dealers licensed under section 134-31 or dealers licensed by the United States Department of Justice shall register firearms pursuant to this section on registration forms prescribed by the attorney general and shall not be required to have the firearms physically inspected by the chief of police at the time of registration.

The opinion delivered by Judge Michael Seabright for the District Court of Hawaii picked apart the statute. Even under intermediate scrutiny, the state failed to argue that the provisions of the law have relevance to the interests of public safety. The state is unable to prove this because there is no such evidence that any of these schemes are ever effective in protecting the public at large, in any jurisdictions. From the opinion:

The challenged provisions in both HRS § 134-2(e) and HRS § 134-3(c) are not longstanding and impose only a moderate burden on the right to bear arms. As such, both provisions are subject to intermediate scrutiny. And because the Government has entirely failed to demonstrate how each law effectuates its asserted interest in public safety, neither law can pass constitutional muster under this standard of review. Plaintiffs’ Motion for Summary Judgment is GRANTED and Defendant’s Counter Motion for Summary Judgment is DENIED.

I’ve long argued that since the creation and implementation of the NICS system, the requirements for people to have to be permitted in order to purchase firearms is beyond moot. A jurisdiction should have the option for permitting, but only to relive a citizen from the requirement to be subjugated to a NICS check. This massive win, while it does not state that argument within the order documents, does have some relevance to that argument. How many background checks should law abiding citizens be required to go through? These permitting schemes are just set up to obstruct and discourage people from exercising a Constitutional right. One of the pins which the case hinged on had to do with the plaintiffs being required to take time off from work in order to fulfill the state’s arbitrary requirements. The press release announcing the original filing notes this:

Hawaii’s law currently requires that any person applying for a permit to acquire a firearm must do so in person at a police station. On Oahu, this means going to the main police station on South Beretania Street. State law also requires a person who obtains or brings a firearm into the state to register it at the same location. When combined with Honolulu police departments policy that a person picks up a permit themselves after waiting 14 days, often means three separate trips to the station on three septate days when obtaining a firearm. Department policy limits the time and days people can pick up permits to Monday to Friday (excluding holidays) between the hours of 7:45 am and 3 pm and gives them a limited time frame to do so

The department’s policy currently has a chilling effect on gun ownership in the state as people are unable or unwilling to take time off work during the workweek to go through the process to obtain one.

Hawaii is then taken to the principal’s office for a little scolding (Hawaii will eventually find themselves behind the woodshed before long).

Indeed, Defendant does not provide any historical context for these laws. Instead, Defendant asserts that their mere existence is evidence that the State of Hawaii’s 10-day permit expiry period is presumptively valid. This meager showing is not enough.

Something interesting in the opinion regards the in person inspection of arms. The arbitrary requirement to have a peace officer inspect a firearm in order to register it is absurd. However, our friends on the other side think different:

In its Amicus Brief, Everytown argues that the State’s in-person inspection and registration requirement falls outside the scope of the Second Amendment as “part of a longstanding regulatory tradition” because it is of a kind with 18th century militia laws. ECF No. 94-1 at PageID # 866. Those laws required individuals enlisted in state militias—“white men in a specified age range”—to maintain their own arms and “provided for in-person inspection to ensure that militiamen were prepared and properly armed if called up to fight.” Id.at PageID ## 871, 873. Everytown cites to a variety of state militia laws, as well as federal Militia Acts. Id. at PageID ## 872-77. In general, as Everytown explains, these laws required periodic inspections of militiamen’s weaponry, with some laws requiring military officials to keep a record of the weapons held by men in their company. Id. Everytown concludes that “[t]he ubiquity of these militia inspection laws means that ordinary citizens in the founding era would have understood a requirement to present arms for inspection to be well within the government’s power—and thus outside the scope of the Second Amendment.” Id. at PageID # 877.

Everytown’s webpage also parrots this when discussing their brief, seeking a high-five from other anti-freedom caucus members:

Everytown for Gun Safety’s amicus briefs explain the long regulatory history that underlies inspection laws. During the founding era, states required in-person inspection of firearms as part of militia service–often multiple times per year. Given that the public accepted such requirements as being within the government’s power at the time of the Second Amendment’s ratification, a far more modest, one-time inspection requirement does not impinge on constitutionally-protected conduct.

This is very convenient for Everytown to bring up. More so for freedom lovers than they probably realize. So, the idea that citizens would be subjected to the same military inspection of arms that the militia was is relevant today? Does this mean that Everytown is conceding that the same citizens that they believe should have their arms inspected should also be able to possess the same exact weapons that our modern military uses? I think that’s exactly what Everytown is stating here in their historic conclusions. If they’re gong to compare the people’s right to keep and bear arms in this context, they must be agreeing the people shall have access to the same arms as the US Military, which would include fully-automatic rifles and a bunch of other pieces of hardware that would leave the Everytown leadership clutching at their pearls. Everytown, you cannot eat your cake and have it too! Does Daddy Bloomberg know what you’ve inadvertently done? All you attorneys out there dealing with Everytown in your cases, remind them of this.

The efforts of Hawaii, Everytown, et.al. were not successful, as the ruling favored freedom. I did have a chance to catch up with attorney Alan Beck, one of the representatives for the plaintiffs in this case about this win and this is what he had to say:

I am very happy to have represented my clients in overturning these two onerous and irrational laws. Both these laws did nothing to promote public safety and were there solely to encumber Hawaii’s firearm owners.

The good work that’s going on in Hawaii needs to continue. Slowly and surly the unconstitutional provisions of their laws are being hacked at and scattered to the winds. Victories like these give hope to other states that are dominated by the anti-freedom caucus such as California, New York, New Jersey, etc. Unconstitutional permitting and registration schemes across the country are being challenged and Yukutake stands as a positive light in regaining liberties long ago taken from we the people.

I’ll leave you with the full conclusion from the opinion:

For the foregoing reasons, Plaintiffs’ Motion for Summary Judgment is GRANTED and Defendant’s Counter Motion for Summary Judgment is DENIED.

HRS § 134-2(e)’s requirement that “[p]ermits issued to acquire any pistol or revolver shall be void unless used within ten days after the date of issue” is declared unconstitutional in violation of the Second Amendment. Defendant’s officers, agents, servants, employees, and all persons in active concert or participation with Defendant are permanently enjoined from enforcing HRS 134-2(e)’s 10-day permit use requirement for handguns. To be clear, no other language in HRS § 134-2(e) is found unconstitutional.

HRS § 134-3(c)’s requirement that, with the exception of certain licensed dealers, “[a]ll other firearms and firearm receivers registered under [HRS § 134] shall be physically inspected by the respective county chief of police or the chief’s representative at the time of registration” is unconstitutional in violation of the Second Amendment. Defendant’s officers, agents, servants, employees, and all persons in active concert or participation with Defendant are permanently enjoined from enforcing HRS § 134-3(c)’s in-person firearm inspection and registration requirement. To be clear, no other language in HRS § 134-3(c) is found unconstitutional.